Archive for the ‘Administrative Law’ Category

Cal. Supreme Court to review appearance of impropriety case

Wednesday, October 31st, 2007

The California Supreme Court has granted review in Morango Band of Mission Indians v. State Water Resources Control Board to decide whether a due process claim against an administrative tribunal can be sustained on a showing of only an appearance of impropriety.

I noted this case when it was decided by the Court of Appeal in August.  According to the Court of Appeal, the problem is created when attorneys from the Attorney General’s office serve both as “prosecutors” and “legal advisors” to the board, albeit not in the same case.  Nonetheless, since the board is in the position of relying on the deputy attorney general’s legal advice in one case, parties appearing before the board with that same deputy attorney general serving as prosecutor may understandably question the fairness of the proceeding.  If the board relies on that attorney for legal guidance, will it give special credence to his or her legal position as a prosecutor?

The California Supreme Court’s press release lists the issue for review in the case as follows:  “May a staff attorney for an administrative agency serve as a prosecutor in one matter while simultaneously serving as an advisor to the agency as decision maker in an unrelated matter, without violating the due process rights of the parties that appear before the agency.”

Stuart Somach of Somach, Simmons & Dunn (Sacramento) represents the plaintiff in the case and Deputy Attorney General Matthew Goldman is listed as lead attorney representing the Board.  Review was granted on October 24, 2007.

As I noted in my earlier post, this is a significant case in state administrative law.  Generally, one cannot state a due process objection based solely on an “appearance” of impropriety in an administrative proceeding, but must instead establish an actual conflict.  If the Court of Appeal decision is upheld, a number of California agencies will have to alter their practices.

Chevron Doctrine Still Generates Confusion

Wednesday, September 5th, 2007

Professor Jason Czarnezki of Marguette University Law School is circulating a new paper on SSRN entitled An Empircal Investigation of Judicial Decisionmaking, Statutory Interpretation & the Chevron Doctrine in Environmental Law.  The article takes a close look at decisions from the DC, 2nd, and 9th circuits, and reports some “confusion” and “befuddlement” over application of the doctrine.  Nonetheless, Professor Czarnezki reports that the doctrine appears to be working “as expected.”  The professor also notes, however, some evidence that the panel’s ideological preference may affect the decision.

Practitioners of administrative law (and especially environmental law) will be interested in the findings.